Crim pro 5th and 6th amendments

Question 1

The 5th Amendment protects..

Answer 1

Self-incrimination.

“No person…shall be compelled in any criminal case to be a witness against himself.

Question 2

What is the scope of the 5th Amendment when it is invoked by a witness?

Answer 2

Allows witnesses to refuse to testify where a response might incriminate or lead to incriminating evidence, even if the witness is innocent.

Question 3

When does the 5th Amendment trigger?

Answer 3

Applies to any investigative stage that calls for testimony that might incriminate in a later criminal proceeding; e.g. grand jury, civil discovery, or administrative proceeding.

Question 4

Under what laws it may be applied?

Answer 4

Applies to cases under state or federal law. However, it does not apply to questions the answer to which might incriminate under foreign law

Question 5

Fifth Amendment protection is limited to

Answer 5

testimonial evidence.

Question 6

Testimonial evidence is characterized by

Answer 6

by the disclosure of the contents of a suspect’s mind and is generated when the suspect gives information. (written or oral)

Question 7

What is not testimonial evidence?

Answer 7

Demonstrating the quality of a voice, as in compelled recitation of words spoken by the perpetrator, is not testimonial.

Nor is the compelled giving of blood, tissue, hair, handwriting, etc. samples

Question 8

Is it true that in a criminal case, the prosecutor cannot force the defendant to testify and the defendant has the right to remain silent and invoke the protection of the Fifth Amendment?

Answer 8

True

Question 9

Is it true that in a criminal trial, the prosecutor is prohibited from commenting on the defendant’s decision not to testify?

Answer 9

True

Question 10

Statements made out of court by a D that invoked his 5th A may be used, if otherwise admissible – usually as a party admission.

Answer 10

True

Question 11

What substitutes for the self-incrimination privilege?

Answer 11

A grant of immunity

Question 12

What happens if a person is granted immunity?

Answer 12

by giving protection against later prosecution stemming from the immunized statements.

Question 13

Is a witness free to decline immunity?

Answer 13

A witness is not free to decline immunity.

Question 14

What are the types of immunity? (2)

Answer 14

1) Transactional immunity
2) Use plus derivative use immunity (often called “use immunity”)

Question 15

What is Transactional immunity?

Answer 15

Bars future prosecution (blanket-all) , except for perjury, of immunized witnesses for any crimes
mentioned in response to questions

Question 16

What is “Use immunity” and Use Derivative immunity?

Answer 16

Neither the testimony itself nor any information directly or indirectly derived therefrom may be used against the witness, except in a perjury or false statement prosecution.

Question 17

What if the witness is later prosecuted for the crime about which he testified?

Answer 17

1) The court must hold a taint hearing

2) Prosecutors have the heavy burden of showing that they have a “legitimate independent source” for the evidence.

Question 18

Is the exploitation of immunized testimony in other, more indirect ways often allowed?

Answer 18

Yes. e.g., planning trial, cross-exam, interpreting evidence

Question 19

Can an immunized testimony be used to impeach a witness who testifies at a later trial?

Answer 19

No.

Question 20

Can police produce documents whether seized or found by a warrant or other ways that could incriminate a witness be suppressed if they have invoked 5th amendment rights?

Answer 20

No. The only basis for invocation of the privilege is when it is on the ground that the documents were created under any compulsion.

Question 21

If the production of tangible items, including documents, in response to a subpoena, may, however, communicate an
a. acknowledgment of the existence of the document or item
b. acknowledgment of its possession or control
c. authentication

Then Witness can..

Answer 21

then the witness may refuse to produce on 5th Amendment grounds unless these are the content of the documents can be predetermined and known in advance.

Question 22

T or F: if the papers are unobtainable by a summons from the client, they are unobtainable from the attorney.

Answer 22

True. To protect the attorney-client relationship.

Question 23

DO Collective entities (corporations, unions, etc.) have 5th Amendment protection?

Answer 23

NO. Only natural people.

Question 24

What are the THREE CONSTITUTIONAL PROTECTIONS in criminal proceedings?

Answer 24

1. Due process – Fifth and Fourteenth Amendments
2. Fifth Amendment Self-Incrimination Clause (Miranda)
3. Sixth Amendment Right to Counsel

Question 25

What does DUE PROCESS protect?

Answer 25

It bars involuntary confessions: coerced

Question 26

Is withholding medical treatment until a suspect provides an explanation for his injuries would constitute coercion?

Answer 26

Yes.

Question 27

Coercion for statements can be done by:

Answer 27

by Improper police tactics such as:

1) threats or physical harm
2) promises

Question 28

When does the protection of Due process apply to confessions?

Answer 28

When there is a state action.

The truth of the confession is irrelevant if due process was violated

Question 29

What confessions were given voluntarily means?

Answer 29

voluntary does not mean of own free will; e.g., the defendant who confesses after
hearing the “voice of God” has not given involuntary confession

Question 30

When Does Miranda apply?

Answer 30

Outside court; i.e., to interrogation when the suspect is in the custody of the police, because such interrogations are inherently compelling of self-incriminating speech and require valid warning.

Question 31

What the four warnings are required under Miranda?

Answer 31

a. right to remain silent
b. anything said may be used against suspect
c. right to the presence of attorney (sometimes called 5th Amendment right to
counsel)
d. right to a free attorney if a suspect cannot afford one

Question 32

if no warnings were given, can the prosecution use the statement in its case-in-chief?

Answer 32

No.
1) even if the suspect actually knew the rights
2) even if the statement was not incriminating when made

Question 33

Must police stop questioning if an attorney is requested?

Answer 33

Yes.

Question 34

Are spontaneous statements made by D acceptable?

Answer 34

Yes.

Question 35

When warnings must be given?

Answer 35

1) applies to all levels of crime, including misdemeanors
2). applies to statements used at the sentencing phase

Question 36

Miranda applies only

Answer 36

to custodial interrogation.

Question 37

Define custody?

Answer 37

Person in custody is person deprived of freedom in a significant way (does not feel free to leave)

Question 38

In home interrogation is generally

Answer 38

not custodial.

Question 39

if the suspect is in the stationhouse voluntarily the interrogation is..

Answer 39

not custodial.

Question 40

Roadside stop; for example, traffic violation or DUI investigation.. Person is

Answer 40

seized for 4th amendment purposes but not in custody for Miranda to be triggered.

Question 41

Most Terry stops are not…

Answer 41

not custodial.

Question 42

What is considered an Interrogation?

Answer 42

It is any express questioning or its functional equivalent: words or actions that police should know are reasonably likely to elicit an incriminating response.

We must consider:
1) police intent is relevant: if the police intend to elicit an incriminating response it is likely to be an interrogation
2) known susceptibility of the suspect is relevant

Question 43

What about Informers or undercover officers planted in jail, is confession elicited need a warning under Miranda?

Answer 43

No. Because there is no compelling
atmosphere; no interplay between interrogation and police custody.
Therefore no Miranda warnings are required.

Question 44

No Miranda warnings are required even though there are custodial interrogations (Exceptions to Miranda):

Answer 44

1) booking questions: administrative questions to secure biographical data necessary to complete a booking or pretrial services.

2) request to take a breathalyzer

3) public safety exception: questions reasonably prompted by concern for
public safety. (e.g., the discovery of a weapon or kidnap victim)

Question 45

After the warnings, the suspect may

Answer 45

waive or invoke Miranda rights

Question 46

What is the Waiver standard:

Answer 46

waiver must be 1) voluntary, 2) knowing, and 3) intelligent

Question 47

waiver is voluntary when

Answer 47

it is product of free and deliberate choice; no intimidation, coercion, deception (as to rights, choices)

Question 48

a waiver is knowing and intelligent when

Answer 48

person is aware of the rights and of consequences of abandoning them

Question 49

How can a suspect invoke his Miranda rights?

Answer 49

1) Right to silence: express invocation or refusal to talk

2) Right to counsel: by an unambiguous request.

The right to counsel bars not only further questioning on the subject of the interrogation but also on any other crime, even by a different interrogator with new warnings (except after a 14-day break in custody)

Question 50

Do Police have an obligation to stop questioning or clarify a suspect’s wishes after an ambiguous request for counsel (e.g., “Maybe I need a lawyer.”)?

Answer 50

No.

Question 51

Once rights are invoked. What are permissible police responses:

Answer 51

1) Right to silence: Miranda is satisfied by “scrupulously honoring” the right to cut off questioning, but police may try to question again if there is a new charge, new questioner, and new warnings

2) Right to counsel: A request for counsel requires cessation of questioning until an attorney is provided and is present unless the suspect voluntarily initiates a conversation with the police.

The invocation continues even after the suspect consults with the lawyer: police still may not question him (unless the suspect initiates) unless the lawyer is present.

Question 52

When police may try to question again to question a person who invoked his Miranda rights?

Answer 52

14 days after the suspect has been released from custody.

Question 53

Based on the Sixth Amendment right to counsel.

Answer 53

“In all criminal prosecutions the
accused shall enjoy the right to . . . . . assistance of counsel.”

Question 54

Protections of the 6th Amendment begin:

Answer 54

When formal adversary proceedings have begun.

Question 55

Sixth Amendment has “attached” during:

Answer 55

1) arraignment
2) indictment
3) information
4) other formal charge

Question 56

Does an arrest or other form of custody does by itself trigger 6th Amendment protections?

Answer 56

No. Only once formal proceedings have begun.

Question 57

Does the suspect need to be in custody for 6th Amendment protections to apply?

Answer 57

No.

Question 58

A defendant invokes his Sixth Amendment right to counsel, for purposes of interrogation, when he..

Answer 58

unambiguously or unequivocally requests counsel upon being approached by the police for interrogation.

Question 59

Once the 6th Amendment was invoked, eliciting information is prohibited …

Answer 59

1) by law enforcement agents, unless counsel is present or the suspect initiates a conversation on the general subject and waives his rights, or

2) by undercover informants, including “jail plants,” who engage the defendant in conversations about the charged crime.

Note” “Passive” listening by an informant is acceptable, however.

Question 60

Does the invocation of the rights on one charge bar elicitation of statements on another, uncharged crime, even if the uncharged crime is factually related to the charged one?

Answer 60

No, it does not bar that.

e.g.
A defendant is arrested, arraigned, and released on bail. Police engage an informant who is wearing a recorder and send him to speak with the defendant. He elicits incriminating statements about the charged crime and other crimes. Statements about the charged crime are suppressed; however, the other crimes are not.

Question 61

The waiver applies only to..

Answer 61

It applies to known police officers

However, there can be no waiver to undercover informants

Question 62

In all criminal prosecutions, the accused shall enjoy..

Answer 62

the right to be confronted with the
witnesses against him; to have a compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defense.

Question 63

Right to retained counsel… What are the options available for D?

Answer 63

a. Defendant gets counsel of choice.

b. Defendant can represent himself, so the right can be waived in court.

Waiver requires the government to bear the burden of proof that the waiver is: 1)
voluntary, 2) knowing, and 3) intelligent.

Question 64

Waiver of right to counsel needs?

Answer 64

A waiver requires the government to bear the burden of proof that the waiver is:
1) voluntary, 2) knowing, and 3) intelligent.

Question 65

6th Amendment right to counsel apply to which convictions?

Answer 65

1) Felony conviction, regardless of the punishment

2) Misdemeanors and petty offenses when there is any incarceration or suspended sentence of incarceration is imposed

3) Later enhancements based on legal uncounseled conviction

Question 66

6th amendment Applies at all “critical” stages of a criminal case:

Answer 66

e.g., preliminary hearing, live pre-trial ID after defendant is charged.

Question 67

IS denial of counsel right is a harmless error

Answer 67

NEVER.

Question 68

Appointed counsel on appeal..

Answer 68

a. Appeal as of Right: There is a right to appointed counsel and to a free trial
transcript if necessary for the appeal.

b. Discretionary Appeal: There is no right to appoint counsel on a discretionary appeal to a state supreme court or to the U.S. Supreme Court

Question 69

EFFECTIVE ASSISTANCE OF COUNSEL: Prejudice is presumed when the government interferes..

Answer 69

with the ability of the defense lawyer to carry out her adversarial duties.

Question 70

a Sixth Amendment violation is established
by..

Answer 70

demonstration of the state action, and there is no requirement to show prejudice or harm.

actions like:

a. bar on attorney-client consultation during overnight recess for fear of coaching;

b. requirement that the defendant be the first witness;

c. bar on direct examination of the defendant.

Question 71

Ineffective assistance of counsel claims..

A convicted defendant’s claim that
counsel’s assistance was so defective as to require reversal of a conviction or
death sentence has two components..

Answer 71

Error and prejudice.

Question 72

The defendant must show that counsel’s performance was

Answer 72

deficient.

Question 73

Error is established when the defendant shows

Answer 73

that counsel’s representation fell below an objective standard of reasonableness

e.g.
1) defense counsel relying solely on police reports without independent investigation is ineffective assistance

2) ignorance of the substantive law governing the crime is ineffective assistance.

Question 74

The proper measure of attorney performance remains simply..

Answer 74

reasonableness under prevailing professional norms

Question 75

Do truncated preparation time or lack of experience or expertise alone establish ineffective assistance of counsel claim?

Answer 75

No.

Question 76

IS Lack of rapport “where the defendant claimed a last-minute substitution denied the defendant a “meaningful attorney-client relationship.” is defective counseling?

Answer 76

No. Rapport is not inherent in the
Sixth Amendment guarantee of a right to effective assistance of counsel.

Question 77

Are questionable defense decisions concerning investigation, objections, testimony, etc., which can be explained by
reference to trial strategy considered errors?

Answer 77

No.

Question 78

The defendant must show that the “deficient” performance actually

Answer 78

prejudiced the defense.

Defendant must show that counsel’s
unprofessional errors raise a “reasonable probability” of a different outcome.

e.g. : sleeping by counsel during trial is sometimes ineffective assistance.

joint representation of two or more accused who have an actual conflict of interest is per se prejudicial.

Question 79

If there was a 4th, 5th, or 6th Amendments violation, What is the remedy available?

Answer 79

THE EXCLUSIONARY RULES

Question 80

When does the EXCLUSIONARY RULE apply?

Answer 80

apply to state actors, and not to private party searches, seizures, or interrogations.

Question 81

What constitutes a state actor in this context?

Answer 81

The principal inquiry in determining whether a private party’s actions constitute “state action” is whether the party’s action may be “fairly attributable to the state.”

Question 82

The Supreme Court has found state action present when the government

Answer 82

delegates to the private sector functions that are historically and traditionally governmental in nature.

e.g. If a municipality privately contracts out the operation of prisons, schools, and municipal parks, the employees of such private contractors would be considered state actors for Fourth Amendment purposes.

Question 83

If the search has been requested or directed by a state actor, where the private party is participating jointly with state actors or the state actor is present and tacitly approves the action, the Fourth Amendment

Answer 83

The Supreme Court has held that a private party who is a “joint participant” with state actors acts under “color of state law’ and 4th Amendment applies

e.g.
Employees of a private mail carrier company partially open a package
containing drugs and alert the police. As long as the police follow the private
trespass without expanding the breach in any way, the invasion of privacy is
attributable to the original private actors. However, if the police expanded the
breach of private with a further invasion of privacy, the separate invasion by the
police would constitute a violation of the Fourth Amendment.

Question 84

The exclusionary rules only apply in

Answer 84

criminal trials and criminal forfeiture
proceedings, and even then not for all purposes.

Question 85

The exclusionary rules never apply in

Answer 85

1. civil cases;
2. grand jury (except for Title III violations);
3. sentencing;
4. administrative proceedings: deportation, probation, or parole violation
   proceedings

Question 86

Application of the exclusionary rule requires there to be a

Answer 86

be a causal connection between the violation and the discovery of the evidence.

Question 87

Evidence obtained in direct violation
of a constitutional provision

evidence indirectly secured as a result of the original illegality is

Answer 87

is generally excludable.

Question 88

The “fruit of the poisonous tree” is subject to

Answer 88

to counter considerations of attenuation, inevitable discovery, or the independent source rule.

Question 89

Examples where the exclusionary rules will not apply to “fruit of the poisonous tree”

Answer 89

1) Tangible Items – This applies to items seized as a result of a warrant issued on the basis of observations during an illegal search

2) Defendant’s presence at trial - the defendant cannot suppress himself.

3) Confession as a fruit of illegal seizure. Usually suppressed, unless there is a
gap of longer than several hours between arrest and confession, or other intervening circumstances.

4) Confession as the fruit of illegal warrantless home entry to arrest. - t. If the only
defect in the arrest is the lack of the required warrant, statements taken in the home
are suppressed. Statements taken outside the home are not.

5) Witnesses. The witness’ decision to testify is a matter of free will

6) Fruits of Miranda violations. the only suppressible fruits of Miranda violations are the statements themselves. Tangible items, witnesses, and subsequent statements (properly obtained) are not suppressed, even if the Miranda violation is the “but for” cause.

Question 90

Fruits of Miranda violations vs. Fruits of coerced confessions.

Answer 90

6) Fruits of Miranda violations. the only suppressible fruits of Miranda violations are the statements themselves. Tangible items, witnesses, and subsequent statements (properly obtained) are not suppressed, even if the Miranda violation is the “but for” cause.

7) Fruits of coerced confessions. By contrast, fruits of coerced confessions, including tangible items, will be suppressed, as will fruits of testimony compelled under a grant of immunity.

Question 91

LIMITATIONS ON THE EXCLUSIONARY RULE :

Answer 91

1. Independent source rule.

e.g. Police have probable cause to obtain a search warrant to search a house
for stolen TVs. They break into the house and see the TV’s. They then apply for
a warrant, not mentioning their illegal entry or observations. As long as the entry
did not motivate the warrant application, the pre-existing probable cause and the
warrant constitute an independent source for the discovery of the TV’s

2. Inevitable discovery rule
   - The prosecution must prove by a preponderance of the evidence that the information ultimately would have been discovered by legal means.

Question 92

T or F: If the defendant takes the stand in his defense he may be impeached with illegally obtained evidence

Answer 92

True. It can be in the form of prior statements or tangible items, that was inadmissible on the prosecution’s case-in-chief.

Question 93

Can witnesses of D be impeached with evidence illegally seized from the defendant?

Answer 93

No.

Question 94

involuntary statements (see above) nor
statements obtained under a grant of immunity (legal coercion) may

Answer 94

be used for impeachment

Question 95

Impeachment with silence, when can it be used?

Answer 95

The defendant’s silence, when arguably he should have spoken, either prior to arrest or after it, may be used to impeach his testimony, subject, of course, to the rules of evidence. However, silence after Miranda warnings may not be used, nor may the suspect’s invocation of Miranda rights.

Question 96

Standing issues triggered how?

Answer 96

The usual question is whether or not the suspect herself had a reasonable expectation of privacy in the place searched.

Question 97

Who has standing in:

1) Homes

2) Guest in homes

3) Cars

4) Phone conversaions

Answer 97

1) Home. Those with a possessory interest in the home have an expectation of privacy there, including in phone conversations on their telephones to which they are not parties.

2) Guest in home. Overnight guests have standing; probably most social guests
do; brief commercial visitors do not

3) Vehicles. Owner and driver have standing; passengers do not have standing in areas such as glove box, under seats, trunk.

4) Phone conversations. Parties to phone conversation have standing to
challenge the electronic surveillance

Question 98

Miranda does not bar all statements made prior to the giving of Miranda rights. Statements made without any questions being asked are considered

Answer 98

volunteered, and admissible even if the required Miranda warning wasn’t given.

a statement that is not in response to any
‘‘interrogation, cannot be barred by
a failure to give a Miranda warning.